Murder convictions reversed where circumstantial evidence placing defendants at the scene of the homicide was insufficient to prove the offenses. Lucero was shot and killed shortly after he and fellow gang members (defendants Lara, Flores and Espinoza) burglarized a house together. Lara’s case was tried before one jury; Flores’ and Espinoza’s cases before a second jury. They were convicted of murder (first degree as to Lara; second degree as to the others), residential burglary, and gang participation. Lara was convicted of additional offenses. The jury found true firearm and gang enhancements. On appeal defendants challenged the sufficiency of the evidence to support the murder and gang convictions, as well as the gang enhancement. Held: Reversed in part. Murder is the unlawful killing of a human being with malice aforethought (Pen. Code, § 187, subd. (a)). A defendant may be convicted of murder as the direct perpetrator or as an aider and abettor, by aiding, promoting or encouraging the commission of the offense. A person who aids and abets a target offense may also be convicted of a crime which is the natural and probable consequence of the target offense. Here, there was no direct evidence of who shot Lucero. The circumstantial evidence reflected the defendants were present at the time of the assault on Lucero and the shooting, but they were not the only people in the area. It was established the defendants were gang members who committed the burglary that preceded Lucero’s death for the benefit of the gang. The assault was carried out by gang members against a gang member, with a gun. As to Lara, the evidence at best proved he aided and abetted an assault on Lucero, which under the natural and probable consequences doctrine, is second degree murder. As to Flores and Espinoza, there was no evidence that either one was the shooter or participated in the assault on Lucero. Their mere presence at the scene, companionship with Lara, flight from the area, and lies to police, do not prove they aided and abetted the offense.
The evidence was sufficient to support the gang conviction and gang enhancements. The substantive gang offense requires active participation in a criminal street gang, with the knowledge the gang’s members engage in or have engaged in a pattern of gang activity, and the willful promotion, furtherance, or assistance in the felonious criminal conduct of the gang (Pen. Code, § 186.22, subd. (a)). The gang enhancement requires the commission of a felony for the benefit of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members (Pen. Code, § 186.22, subd. (b)). The prosecution’s expert testified that Lucero and the defendants were active Norteno gang members at the time of the offense. This was based on police contacts and on admissions made by the defendants during a booking interview. The burglary was committed by the defendants and Lucero. The expert’s “testimony, and other evidence in the record, sufficiently establishes the Norteno criminal street gang defendants actively participated in and benefitted by committing the burglary was the same group that committed the predicate offenses and engaged in criminal primary activities within the meaning of section 186.22” as required by People v. Prunty (2015) 62 Cal.4th 59.
The evidence admitted to prove gang membership and the organizational connection between the Nortenos gang and the subset gangs which committed the predicate offenses violated People v. Sanchez (2016) 63 Cal.4th 665, and People v. Elizalde (2015) 61 Cal.4th 523, requiring reversal of the gang convictions and enhancements. In Elizalde the court held that routine gang affiliation questions asked during a booking interview constituted an interrogation for purposes of triggering a defendant’s rights under Miranda v. Arizona (1966) 384 U.S. 436, because they are likely to elicit an incriminating response. Therefore, unwarned statements are inadmissible against the defendant in the prosecution’s case-in-chief. In People v. Sanchez, the court held that where a prosecution expert relates testimonial hearsay, there is a confrontation clause violation unless there is a showing of unavailability and the defendant had a prior opportunity for cross-examination. Here, the prosecution relied in part on defendants’ admission of gang membership during booking interviews and field identification cards prepared by non-testifying officers to establish the defendants’ gang membership. This violated the defendants’ constitutional rights. The error was prejudicial because the evidence was crucial in proving the predicate offenses necessary to satisfy the associational or organizational connection required by Prunty and to support the substantive gang offense convictions and gang enhancements.
The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/C072355.PDF